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2019 (4) TMI 183

CTE - issuance of second SCN - Extended period of limitation - Circular No. 86/4/2006 dated 01.11.2006 - validity of SCN - Held that:- Till the introduction of Finance Act 2010 by which explanation was inserted in sub clause zzc of Section 65 (105) of the Finance Act, the term ‘Commercial Coaching of Training Centre’ was deemed to have included only those centres which were rendering the service with profit motive as clarified vide Circular No. 86/4/2006-dated 01.11.2006 (S) - However with enactment of the Finance Act, 2011 the clause (27) of Section 65 of the Finance Act, the term ‘Commercial Training or Coaching Centre’ would cover all trainings centers giving training for a consideration irrespective of the profit motive of the center. This change was given retrospective effect from 01.07.2003. - It is seen that in the notice, the only ground raised is that the long term course on which demand has been raised are not recognized by AICTE etc. The law does not provide for recognition by AICTE as a pre-condition of exemption from tax. The language is very clear. Prior to 01.05.2011, institutes providing training leading to qualification ‘recognized by law’ were outside the purv .....

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ed out that one notice was issued for the period 2009-2010 to 2013-14 invoking extended period of limitation. The second notice has been issued within the period of limitation for the financial year 2014 - 2015. Ld. Counsel pointed out that the primary allegation in the SCN is that there long duration courses are not recognized by AICTE. Ld. Counsel pointed out that recognition by AICTE is not a necessary pre-condition for exemption from the Service Tax. 2.2 Ld. Counsel pointed out that Section 65 (26) of the Finance Act, 1994 defines Commercial Training or Coaching in the year 2003 as under:- Commercial training or coaching means any training or coaching provided by a commercial training of coaching center. He further pointed out that Section 65 (27) of the Finance Act defines Commercial Training or Coaching Center as follows: Commercial training or coaching center means any institute or establishment providing commercial training or coaching for imparting skill or knowledge or lessons on any field other than sports, with or without issuance of a certificate and includes coaching or tutorial classes but does not include pre-school coaching and training center or any institute or e .....

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the establishment or the institute must be commercial (i.e. having profit motive) in nature. It is argued that institutes which are run by charitable trusts or on no-profit basis would not fall within the phrase commercial training or coaching center and none of their activities would fall under the taxable service. This argument is clearly erroneous. As the phrase commercial training or coaching center has been defined in a statute, there is no scope to add or delete words while interpreting the same. The definition commercial training or coaching center has no mention that such institute must have commercial (i.e. profit making) intent or motive. Therefore, there is no reason to give a restricted meaning to the phrase. Secondly, service tax, unlike direct taxes, is chargeable on the gross amount received towards the service charges, irrespective of whether the venture is profit making, loss making or charity oriented in its motive or its outcome. The word Commercial used in the phrase is with reference to the activity of training or coaching and not to the nature or activity of the institute providing the training or coaching. Thus, services provided by all institutes or establi .....

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fication recognized by law, was narrowed down and restricted to only those commercial coaching and trainings leading to grant of certificate or diploma or degree or any educational qualification recognized by any law. Therefore, while earlier for identical courses provided by two different institutes could be treated differently for the purpose of levy of service tax, w.e.f. 01.05.2011 the said distinction was removed by making the exemption course specific instead of institute specific. 2.6 Ld. Counsel for the appellant pointed out that IIM was set up in 1961 by a Cabinet Note of Govt. of India as an autonomous body and out of the regulatory fold of the Govt. of India. He pointed out that AICTE came into existence in 1968. He further pointed out that since IIM is not under UGC, therefore, the educational qualifications granted by them are called diplomas. Ld. Counsel relied on the decision of the Tribunal in the case of ITM International (P) Ltd. 2017 (7) GSTL 448 (Tri. Del.) He pointed out that the said decision was followed by Tribunal in the case of IILM Under graduate Business School reported in 2018 (10) GSTL 345. Ld. Counsel also has relied on the decision of Hon ble High Co .....

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equate the Fellow in Management of the Indian Institute of Management, Ahmedabad as equivalent to Ph.D. degree in management awarded by Indian Universities. 2.7 Ld. Counsel also relied on report of AICTE Review Committee, 2015 wherein following has been observed with reference to the appellant: AICTE does not enjoy a constitutional status. ... ... … … … … … … … Although the AICTE was intended under the statute to be the apex national agency to promote a coordinate and integrated development of technical education at all levels throughout the country, in practice it was never empowered in this behalf. Government itself exercised the powers of the national agency promoting the coordinated and integrated development of technical education in the country. In created autonomous bodies like the IITs, the NITs, the IIMs, the NITTRs, and the like and allotted huge funds to them. 2.8 Ld. Counsel also pointed out for the purpose of admission to higher studies, the PGDM course of IIM Ahmedabad has been approved by Association of Indian Universities since 03.04.1969. In support of this, he produced a copy of the relevant web page from the websit .....

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any person, by a commercial training or coaching centre in relation to commercial training or coaching; In the Finance Act, 2010, the following explanation was inserted in the sub clause zzc of Section 65(105) of the Finance Act 1994. (b) in sub-clause (zzc), the following Explanation shall be inserted and shall be deemed to have been inserted with effect from the 1st day of July, 2003, namely :- Explanation.- For the removal of doubts, it is hereby declared that the expression commercial training or coaching centre occurring in this sub-clause and in clauses (26), (27) and (90a) shall include any centre or institute, by whatever name called, where training or coaching is imparted for consideration, whether or not such centre or institute is registered as a trust or a society or similar other organisation under any law for the time being in force and carrying on its activity with or without profit motive and the expression commercial training or coaching shall be construed accordingly; It can be seen that the said explanation was inserted w.e.f. 01.07.2003. Vide Finance Act 2011, the following changes were made in clause 27 of Section 65. (3) in clause (27), the portion beginning .....

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on as a part of a curriculum for obtaining a qualification recognised by any law for the time being in force; (iii) education as a part of an approved vocational education course; (m) services by way of renting of residential dwelling for use as residence; 4.3 The Revenue had changed its stand. Earlier only the Commercial Concerns were taxable, however, the commercial nature of training was sought to be made taxable by Circular No. 107/01/2009-SC dated 28.01.2009. This change was later given effect by the amending Finance act, 1994 with Finance Act, 2010. This amendment was given retrospective effect from 01.07.2003 by insertion of explanation in the sub clause zzc of Clause 105 of Section 65. 4.4 In summary as per legal provisions: (a) prior to 01.05.2011 all trainings given for a consideration by any person covered under the definition of commercial training or coaching center would be liable to service tax. Clause 27 of Section 65 of the Finance Act which define commercial training or coaching center excluded from its purview any institute or establishment which issues any certificate or diploma or degree or any educational qualification recognized by law for the time being in f .....

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Thus, the appellants have claimed that upto 01.05.2011, since they were providing education recognized by law, they do not fall under the definition of commercial coaching or training center and thus no liability of service tax can be fastened on them till 01.05.2011. They have further contended that after 01.05.2011 all the educational training leading to grant of a qualification recognized by law would not be chargeable to service tax. They have contended that in respect of education other than that leading to grant of a qualification recognized by law they are paying service tax. 6. We find that revenue has argued that the letter dated 14.02.2017 of min of HRD does not retrospective recognition. A perusal of the language of the letter clearly shows that it is in the nature of a clarification. It clearly states the provisions of AICTE approval or NBA accreditation does not apply to IIMs. 6.1 Revenue has argued that no evidence has been produced letter dated 31.08.1966 is still valid. It is seen that no evidence has been produced by revenue to prove that the said recognition has been withdrawn. Subsequent communications with Ministry of HRD and with TRU indicate that there is no .....

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ICTE. UGC grants recognition to universities and deemed universities under Section 2(f) and Section 3 of the UGC Act, 1956, and is not a body to grant recognition to any certificate or degree or education or any educational qualification. As per Section 2(f) of the University Grants Commission Act, University means a University established or incorporated by or under a Central Act, a Provincial Act or a State Act and includes any educational institute as may, in consultation with University concerned, be recognized by the Commission in accordance with the regulations made in this behalf under the Act. As such, it is seen that UGC Act does not state anything about recognition of courses or degrees/diplomas. AICTE only recommends technical curriculum and other criteria for technical courses to be offered by technical colleges. As such, the said circular of the Board is not at all applicable to the facts of the present case. The said views of Member (Judicial) were approved by Third Member in para 24 which reads as follows. 24. The next question is whether such a degree or diploma is recognized by law for the time being in force. Here, the reason discussed by Member (Judicial) is prop .....

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TM International Pvt. Ltd. vide Final Order dated 11-9-2017 [2017 TIOL 3645 CESTAT, Delhi = 2017 (7) G.S.T.L. 448 (Tri.)] held that Ministry of HRD vide Notification dated 13-3-1995 stated that the Govt. of India had decided that those foreign qualifications which are recognized/equated by the AIU are treated as recognized for the purpose of employment services under the Central Government. No separate orders for recognition of such foreign qualification is needed to be issued. The Tribunal also noted that UGC had advised Indian students to ascertain information regarding equivalence of the degrees and diplomas awarded by accredited Universities abroad. While examining these facts, the Tribunal in the said case held that the course offered by appellants resulting in the issue of certificate by the University of London, which is treated as equivalent to degree or diploma issued by Universities in India, the appellant was held to be falling outside the scope of definition for Commercial Training or Coaching Centre . Ld. Counsel also has relied on the decision of Hon ble High Court of Delhi in case of Indian Institute Aircraft Engineering 2013 (30) STR 689 (Del.). In the case of India .....

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Though by amendment of the recent years, the right to practice law on the basis of the said qualification has been made subject to clearing/passing a Bar Exam to be held by the Bar Council of India, the same does not make the qualification of law not recognized by law. The recognition accorded by the Act, Rules and CAR supra to the Course Completion Certificate issued by the Institutes as the petitioner cannot be withered away or ignored merely because the same does not automatically allow the holder of such qualification to certify the repair, maintenance or airworthiness of an aircraft and for which authorization a further examination to be conducted by the DGCA has to be passed/cleared. 6.3 Ld. Counsel also relied on the clarification issued by CBEC vide Dof. No. 334/8/2016-TRU dated 29.02.2016. In CBEC letter dated 29.02.2016 following has been observed: 7.14 Services provided by the Indian Institutes of Management (IIM) by way of 2 year full time Post Graduate Programme in Management(PGPM) (other than executive development programme), admissions to which are made through Common Admission Test conducted by IIMs, 5 year Integrated Programme in Management and Fellowship Programme .....

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1.2017 that recognition by AICTE or NBA accreditation is not required by IIMs. These facts have been affirmed by the letter of TRU dated 14.02.2017. Thus we hold that long term course of IIM are courses recognized by law. In view of that the demand does not survive on merits. 8. In so far as the issue of limitation is concerned, we find that the appellants were providing long term courses which were approved by Ministry as well as government for the purpose of higher education and for the purpose of jobs. It is also seen that during the period 2003 to 2010, even revenue was not sure about the nature of service which was intended to be taxed. This is apparent from various circulars issued by revenue and subsequently by retrospective amendment to the definition of commercial training or coaching centres. It is also seen that the appellants are premier organization. The appellant have also registered with service tax department, their account were being audited on annual basis. Earlier revenue has sought reversal of cenvat credit treating this service of long term training courses as exempted service. In this background, we find that there was not suppression and mis-declaration by th .....

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